Planned Parenthood Denied Injunction
Judge questions likelihood that provider will prevail in suit
By Jordan Smith, 4:41PM, Fri. Jan. 11, 2013
After a day-long hearing, Travis County Judge Stephen Yelenosky today denied Planned Parenthood a temporary injunction, allowing the state to continue operating, for now, the state-funded Texas Women's Health Program that excludes the nonprofit.
Although he agreed that "probable injury" to Planned Parenthood and its clients may result, that is not enough to block the program. Indeed, now that the state is funding the once-Medicaid-funded program, Yelenosky said from the bench, there is less likelihood that Planned Parenthood will prevail on the merits of the case, another of the elements required for issuing a temporary injunction.
At issue is whether the state can ban Planned Parenthood from participation in the new state-funded Texas Women's Health Program. The new program went online Jan. 1, providing basic health care for low-income, uninsured women ages 18-44 who would not be eligible for Medicaid unless pregnant.
The new state plan was created to prohibit Planned Parenthood from participation. The previous Medicaid-funded Women's Health Program was funded 90% by the federal government. By all accounts, that program was an overwhelming success: In 2010, the state paid just $3.6 million into the program, saved $54 million in general revenue, and averted more than 8,000 unplanned births that would have been paid for by Medicaid. Medicaid pays for roughly 56% of all births in Texas.
Over the recent legislative interim state health officials devised a new set of rules for the WHP, to exclude Planned Parenthood clinics from participation, claiming that all of the nonprofit's health clinics are actually "affiliates" of abortion providers. Allowing an abortion affiliate – or "promoter" of abortion – into the program would dilute the state's pro-life message, lawyers from the attorney general's office have argued in court. Notably, pregnant women are not eligible for the WHP, and none of the Planned Parenthood clinics that participate in the program provide abortion services.
Federal law does not allow for discrimination among qualified providers, and federal funding for the program ended on Dec. 31, 2012. In its place, the state launched the rebranded TWHP, and excluded Planned Parenthood.
Pete Schenkkan, one of the attorneys representing the state's Planned Parenthood affiliates and Marcela Balquinta, a Planned Parenthood WHP client in Hidalgo County, argued before Yelenosky that state law also prohibits Texas from discriminating against Planned Parenthood's participation in the program.
If the new state-funded program is considered a successor to the Medicaid-funded WHP, and thus still controlled by portions of the Human Resources Code that require the state to avail itself of Medicaid funding then the ban on PP would not be allowed, because the life of the program would be tied to Medicaid funding, which has been lost. Ultimately, because the state already adopted a rule banning Planned Parenthood that did cause it to lose federal funding, that portion of the HRC that contains the so-called "affiliate ban" is rendered inoperable. As such, it's no longer in play at all Schenkkan argues. "Inoperable is polite for dead," Schenkkan said.
Similarly, if the state believes it can launch the TWHP via the authority of Department of State Health Services, which it could legally do Schenkkan argued, the state would still face a problem because of DSHS-specific rules that also prohibit the state from discriminating against medically-qualified providers. Either way, he argued, the ban on Planned Parenthood is not allowed by state law. "They've got to find some statutory authority for DSHS to…exclude Planned Parenthood, and the opposite is the case," Schenkkan argued in court.
Assistant Solicitor General Kristofer Monson disagreed: DSHS is an arm of HHSC and as such it is beholden to rules that govern HHSC, and is required to respond to the specific subsection of the HRC that contains the ban on abortion affiliates – and, practically, of Planned Parenthood. Specifically, that HRC section – 32.024 (c-1) – requires the health agency to ensure that any WHP program not use money to "perform or promote elective abortions or affiliate with entities that perform or promote elective abortions." That language creates an "affirmative obligation" by all of the agencies that HHSC oversees – and that includes DSHS – to follow the rule. Thus, that section narrows the universe of providers qualified to participate in the Texas WHP; beyond that restriction, DSHS' own rules kick in that would not allow the agency to further discriminate among the ultimately eligible provider pool, Monson argued.
On the ground, the impact of the ban has been immediate, according to Patricio Gonzales, who for 20 years has served as CEO of Planned Parenthood Association of Hidalgo County. Since the demise of the WHP, in just a single week this January, his four Hidalgo clinics have seen a 60% drop in the number of women who have come in for services. PPAHC has already had to close four clinics, thanks to the drastic cuts in 2011 to the family planning budget, and unless Gonzales' organization is able to secure additional funding – either via the federal government or private foundations – he will have to close three additional clinics, he testified. The change in WHP rules and the move to a state-funded program, has "impacted our mission negatively," he said. "We are the main provider of family planning and reproductive health services for poor women in Hidalgo County."
Indeed, Balquinta testified that she has been a Planned Parenthood patient in Hidalgo County continuously since 2008, when she first signed up for the WHP. She trusts Planned Parenthood and feels comfortable there, she testified in court, and she'd like to continue receiving care, but isn't sure if she'll be able to afford it now that Planned Parenthood has been dropped from the TWHP.
Has Balquinta looked for a new provider, asked one of the state's attorneys.
No, she replied.
"Would it surprise you that there are more than 1,000 [TWHP providers] in your region?" he asked.
No, Balquinta answered.
Of course, the notion that there is a bumper crop of providers in the Valley ready to take on the 5,000 WHP clients that PPAHC saw last year is surprising to many. Since the state decided to extract Planned Parenthood from the program, state health officials have been adamant that there will be plenty of providers to pick up the slack – that is, the tens of thousands of women that had been receiving services from Planned Parenthood who, if the state's ban ultimately stands, will be required to find a new provider if they want to continue to avail themselves of the subsidized health care.
Over the five years of the Medicaid-funded WHP, Planned Parenthood was the largest single provider of services, annually serving between 40-50% of all program clients. As such, in dumping Planned Parenthood from the program, the state is also orphaning more than 40,000 women who had been receiving services at Planned Parenthood clinics.
Not only is there provider capacity to absorb Planned Parenthood's clients, but enough capacity exists also to expand the state program by some 67,000 clients, according to the results of a provider survey released last week by the Health and Human Services Commission.
Rick Allgeyer, who headed up that survey effort testified Friday that the survey of TWHP program capacity was not speculative, but instead a "point in time" snapshot of client capacity. Allgeyer, director of research and strategic decisions for HHSC, said his group sent surveys out to 1,948 existing WHP providers within 17 different geographic areas around the state currently served by Planned Parenthood and asked how many clients each could see in 2013. Although his survey takers did their best to contact everyone, some simply didn't respond, he testified; in those cases, he assumed they could serve as many clients in 2013 as they did in 2012.
As such, in McAllen, for example, where Gonzales said Planned Parenthood last year served 5,000 clients, Allgeyer said there is actually capacity to see more than 10,000 women in 2013, by providers located within 30 miles of a Planned Parenthood clinic. Why those providers hadn't already been signing up potential clients is unclear; indeed, the total enrollment of the WHP has grown significantly since 2007, and according to a report from the Guttmacher Institute, there are more than 1 million women in Texas in need of the kind of services provided by the program.
Allgeyer's survey did not ask how many women a provider would see, only how many they could see, McKetta pointed out on cross examination. The survey, he said, was based on "capacity and could versus commitment and will." Indeed, Allgeyer said not much follow-up was done to ensure that the provider estimations were actually realistic. "We talked about why we would see" those differences, he said, and concluded that capacity in the past was simply based "on client choice." Thus, if someone could serve 50 clients, but only 20 walked through the door, that would explain why they weren't up to capacity. Now that choice has been restricted under the TWHP, many providers may have an opportunity to see more folks than they otherwise would. But a provider saying that it could see more patients, "is not the same as saying they would see one more person than they did the year before," McKetta noted. "No," Allgeyer conceded, it's not.
In the end, however, Allgeyer said he believes the survey provides the state with "confidence that we do have the capacity" to serve TWHP clients in need of services, and he said HHSC will continue to do capacity and other studies to make sure that remains true.
Still Joe Potter, a researcher with UT's Population Research Center who is heading up a three-year project looking at the effects of cuts to women's health care on women's health – including rates of sexually-transmitted diseases, and unplanned pregnancies – says the survey actually demonstrates how much the system will have to grow in a short period of time in order to absorb clients previously being seen by Planned Parenthood. Looking at the survey results, he said he found that there are five areas of the state where more than 60% of clients were served by Planned Parenthood, and another two areas where more than 50% were served by Planned Parenthood. Without Planned Parenthood in the mix, he said, the transition to other providers "has to happen now, in order to serve the clients in the system." In other words, future capacity isn't really the issue, it's how many clients can be seen now, and the HHSC report is silent on that point.
HHSC has been working hard to do ease the transition: Michelle Harper, director of acute care policy at HHSC and in charge of implementing the new TWHP, testified that so far HHSC has successfully found a provider for every woman who has called the program's 800 number. "I can't give you an exact number" of women who've been helped, she said. She didn't have information about how many women have called, or whether the women have been able to get an appointment with the provider HHSC found for them. Still, if a woman calls and the HHSC "customer service" agents can't find a provider in her area, Harper said the reps have been instructed to "go out and recruit one."
Ultimately, Harper said, her goal is to provide services to as many low-income women as possible. Are there continuing efforts to improve the new TWHP? Monson asked.
"Yes," Harper replied, "I can guarantee you that."
Despite the ruling, Schenkkan says he remains "confident in the merits of our case," and is eager to proceed to trial.